Medical malpractice fight going to appeals court

Published On: Oct 02 2013 05:43:07 PM EDT

TALLAHASSEE, Fla. -

The latest round in Florida's long-running legal and political fight about medical malpractice is headed to a federal appeals court.

Just days after a federal judge rejected part of a new malpractice law backed by doctors, the defendant in the case gave notice Monday that he will challenge the ruling in the 11th U.S. Circuit Court of Appeals in Atlanta.

On its face, the parties in the case are the defendant, Madison physician Adolfo C. Dulay, and a former patient, Glen Murphy, who alleges he was injured by medical negligence. But the case is somewhat akin to a proxy battle for groups such as the Florida Medical Association and the Florida Justice Association that have been at odds for years about changes in the malpractice system.

U.S. District Judge Robert Hinkle last Wednesday found that a key part of the law, passed by state lawmakers this spring and signed by Gov. Rick Scott, was invalid because it conflicted with federal requirements aimed at protecting the confidentiality of patient information. Meanwhile, at least three other cases involving similar issues are pending in courts in South Florida and the Panhandle --- all filed immediately after the new law took effect July 1.

Erik Bartenhagen, a Miami-based attorney representing Dulay, said he could not comment Wednesday about the appeal. But Debra Henley, executive director of the Florida Justice Association trial-lawyers group, called Hinkle's ruling a victory for the "rights of all Floridians."

"The Florida Justice Association took on this fight because the legislation was a clear violation of a patient's right to privacy,'' Henley said in a prepared statement. "This is a prime example why the system of checks and balances in our democracy is so important."

The new law has two main parts. One would tighten restrictions on expert witnesses who testify in malpractice cases, long a sore subject with doctors. The other part --- the issue involved in Hinkle's ruling and the appeal --- deals with a legal concept known as "ex parte communications.''

While somewhat esoteric, the ex-parte communications issue could come into play when physicians' defense attorneys are trying to gather information about patients who allege medical malpractice. The law, for example, would allow defense attorneys to talk with other doctors who have treated the patients --- without the patients' lawyers being present.

Supporters have argued that such "ex parte communications" are fair because they would give defense attorneys access to information that plaintiffs' attorneys already can review. Also, supporters have contended that the information could help defense attorneys make decisions more quickly about whether to settle or proceed with cases.

But throughout the legislative session, plaintiffs' attorneys argued that the process could lead to the disclosure of information to defense lawyers that would violate patients' privacy rights. Part of that argument was grounded in a federal law, the Health Insurance Portability and Accountability Act, or HIPAA, which seeks to prevent disclosure of personal medical information, except in certain circumstances.

The notice of the appeal filed Monday does not provide details about the arguments that Dulay's attorneys will make. The state also intervened at the lower-court level to argue on behalf of the law.

But Hinkle, in his 19-page order last week, sided with the arguments made by plaintiffs' attorneys.

"The issue is whether a state, by statute, may require a patient, as a condition precedent to pursuing a medical-negligence claim, to sign an authorization allowing the potential defendant --- and the potential defendant's attorneys, insurers and adjusters --- to conduct ex parte interviews with the patient's other healthcare providers,'' Hinkle wrote. "Because federal law prohibits ex parte interviews of this kind with exceptions not applicable here, this order holds the statute invalid and enjoins the defendant doctor --- and those in concert with him --- from conducting ex parte interviews with the patient's other healthcare providers, except as authorized by federal law."

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